Posted
by
Zonk
on Friday August 04, 2006 @07:01PM
from the worst-law-evar dept.

espo812 writes "A story from Washingtonpost.com says, 'The Senate has ratified a treaty under which the United States will join more than 40 other countries, mainly from Europe, in fighting crimes committed via the Internet.' Ars Technica says it's the 'World's Worst Internet Law.'" From the Ars story: "According to the EFF, 'The treaty requires that the U.S. government help enforce other countries' 'cybercrime' laws--even if the act being prosecuted is not illegal in the United States. That means that countries that have laws limiting free speech on the Net could oblige the F.B.I. to uncover the identities of anonymous U.S. critics, or monitor their communications on behalf of foreign governments. American ISPs would be obliged to obey other jurisdictions' requests to log their users' behavior without due process, or compensation.;"

For those of us who disagree, there is a movement called anoNet that created a seperate internet. In early 2005, a few people fed up with the way the Internet was heading, began in earnest to create a large wide area network that was secure and lived in its own space. On this new network anyone would be free to do as they saw fit - roam about, host services, or just be social without fear of being monitored or even worse censored. The first step to bring this network to fruition was to encrypt the information that normally travels across the Internet.

Doh! How stupid of me! You're right. We should criminalize Xerox machines because they can be used to copy kiddyporn.Privacy is not a shield behind which to hide illegal activity

Ahhhhh! Now I get it! We cannot permit criminals to use privacy as a shield to hide illegal activities, therefore we must make it criminal to have and use privacy at all as a shield to hide anything. If you try to have any privacy as a shield to hide anything, we must make you a criminal because someone else might be a criminal.

Of course it is, because the only way that privacy could not be so used is to eliminate privacy for all purposes, legal or otherwise. That is implicit in the way or legal system and law enforcement have traditionally dealt with personal privacy: it can be violated, if necessary, but only upon good and sufficient cause. Granted, that is changing and not for the better (as in "no cause whatsoever.") Furthermore, this focus on eliminating personal

Except now you dont know what is legal. Especially now that there is 40 countries with their respective laws in different languages. Have fun being extradited to the Republic of X because Y is illegal there. (Psst: be careful who you piss off)

I find it really sad that the parent was modded insightful... not so much because I don't think it's true, but because it's so true that the moderators chose to mod it insightful instead of funny... Now I almost feel bad about laughing at this piece of comic gold...

I believe that what's happening now is the result of someone reading 1984 and thinking "hmm, good idea!"

Instead of them treating Orwell's 1984 as a warning, they're treating it like a guidebook on how to run the Government. "Look, a HOWTO!"

Scary times indeed, where $9B goes "missing" in Iraq, after being hand-flown there (google it), and where 11 MILLION people marched on their state capitols to protest this conflict in Iraq (not a "War", since Congress has not declared war against Iraq), and Bush cal

An international treaty is considered law here, but that does not mean it is immune from constitutional questions. This treaty must be balanced with the bill of rights, so there is obviously lots of litigation in the future if it is actually enforced...

Indeed, the framers intended for the Congress to make law, not enforce it. That is left up to our executive branch. Well, shit we are screwed 2 ways there as the NSA case has already shown us. Fortunately our courts are not so easily bought, or so we hope. The balance of power is very skewed in this and finding a way out of this treaty may prove dificult.

"The U.S. is not a party to the Vienna Convention. However, the State Department has nonetheless taken the position that it is still binding, in that the Convention represents established customary law. The U.S. habitually includes in treaty negotiations the reservation that it will assume no obligations that are in violation of the U.S. Constitution. However, the Vienna Convention provides that states are not excused from their treaty obligations on the grounds that they violate the state's constitution, unless the violation is manifestly obvious at the time of contracting the treaty. So for instance, if the US Supreme Court found that a treaty violated the US constitution, it would no longer be binding on the US under US law; but it would still be binding on the US under international law, unless its unconstitutionality was manifestly obvious to the other states at the time the treaty was contracted. It has also been argued by the foreign governments (especially European) and by international human rights advocates that many of these US reservations are both so vague and broad as to be invalid. They also are invalid as being in violation of the Vienna Convention provisions referenced earlier."

This isn't lawful, is it? The American government cannot simply give up one of it's own citizens to a foreign country just because he or she committed a crime on the Net. Maybe it if matches an American law, sure, but not a foreign one.Let me illustrate. Hacking into a website and vandalizing it, that would be illegal in both countries. Posting something on a message board that is physically located on a server in a foreign country which has freedom of speech restrictions, well, although illegal in the fore

RandomTotaliarianGovernmentX declares that avowing oneself - publically - to be a homosexual is a crime.

American goes on craigslist and says he wants to hook up for some play. Some girl decides she wants to try her hand with another girl.

Enter the US State Dept. which contacts RTGX and says "Hey, you know how we have those sanctions on you? We'll drop 'em if you agree to insist that we extradite all the publically avowed homosexuals to you..."

I live in michigan and my city still has a no spitting law on the books.. up to 100$ or 30 days. When the law was written in the early 1900's there were huge problems with TB... most cities then were still dealing with raw sewage in the streets as a "bad thing" and TB can really be caught THAT easily, by wiping the spit off your shoe. It's sometimes hard to believe all the little "civilities" that we "just don't do" we take for granted in the USA.

I don't see why not. We expect other countries to extradite [adamsmith.org] their [techworld.com] citizens [smh.com.au] for breaking US laws. It seems only fair. While in most cases they've broken the law in both countries, that's not always true.

An international treaty is considered law here, but that does not mean it is immune from constitutional questions. This treaty must be balanced with the bill of rights, so there is obviously lots of litigation in the future if it is actually enforced...

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land"

When two things that are said to be the supreme law of the land... they must be balanced by the courts. Explain, in your expansive legal expertise, why I am wrong.

Furthermore, IANAL, but constitutional law is of interest to me and I do have some basic k

IANAL, but wouldn't the "under the Authority of the United States" preclude any treaties which violate the constitution? I.E. Since Congress can't abridge freedom of speech, they also shouldn't be able to enter into a treaty which abridges free speech. Then again, given things that have managed to pass, I'm getting some nasty doubts.:\

It could just as easily be argued that "under the Authority of the United States" refers to the authority to enter into treaties and not the authority to pass other laws. The first part of the Supremacy Clause clearly limits supremacy to laws passed pursuant to the Constitution but the same language does not appear with respect to treaties. It's a well established cannon of construction that if a legislator has demonstrated an ability to make distictions in one section of a law and fails to make the same

In the US, under the Supremacy Clause, ratified treaties have the force and effect of law. Now, the Convention on Cybercrimes, to the best of my memory, is written so that it isn't self-effecting, but does require contracting parties to enact laws implementing the treaty. We wrote a draft implementing act in my cybercrimes seminar in law school and, although there are ways to build in safeguards, the Convention still requires that we enact laws giving other contracting parties certain rights with respect

And that the problem of treaties superceeding the US constitution is not new either, and there is much debate and not much actual case law one way or the other.

Actually, that's quite wrong - there's lots of case law on the subject of treaties and executive agreements WRT the Constitution, and it's generally quite consistent. Start with Reid v. Covert, 354 US 1 (1957), and work your way backwards.

Yes, I'm not new here, but people need to RTFM, including the submitter. From the Ars article, just a little further than halfway down:

The goal of the treaty is not to let the Chinese crack down on dissidents living in America, however, and so countries may refuse to cooperate with requests that involve a "political offence" or if a country believes the request would "prejudice its soverignty, security, ordre public or other essential interests." The US Department of Justice has already announced [securityfocus.com] that "essential interests" would allow the US to refuse any request that would violate the Constitution.

Color me stupid.. I didnt read the Ars article, only the post. That is a little better. However what the DoJ says is constitutional and what the courts have decided is constitutional is not really always the same.

The US Department of Justice has already announced [securityfocus.com] that "essential interests" would allow the US to refuse any request that would violate the Constitution.

But the big question is: how long before "political gain" becomes "essential interest" in deciding whether or not to turn over someone who is critical of the administration? Valerie Plame makes for an illustrative point of the dangers involved in being near to someone critical of policy. Her colleague's lives were endangered for no oth

Well, IANAL, but I imagine that as long as the treaty allows for exceptions (and note that the treaty also explicitly allows for exceptions in the case of political offenses), we could argue before the courts that the Constitution should take precendence over the treaty.

From TFA: The Convention on Cybercrime does recognize this, and to its credit provides a set of exceptions to mutual assistance that should help prevent the worst abuses. The Convention does require members to adopt similar legislation on the following issues: illegal access, illegal interception of computer data, data interference, system interference, misuse of devices, computer-related fraud and forgery, child pornography, and copyright violations "on a commerical scale." The goal of the treaty is not to let the Chinese crack down on dissidents living in America, however, and so countries may refuse to cooperate with requests that involve a "political offence" or if a country believes the request would "prejudice its soverignty, security, ordre public or other essential interests." The US Department of Justice has already announced that "essential interests" would allow the US to refuse any request that would violate the Constitution.

Given these safeguards, fears of political persecutions seem overblown, as do concerns that these requests will simply be issued directly from Beijing (which is not a signatory) to Comcast HQ without court oversight.

Remember Guantanamo? Our illustrious leaders might "choose" not to enforce unconstitutional requests...but they don't *have* to. That's what makes it obscenely scary. They're more likely to enforce it selectively, as power is *always* wont to do.

INAL, but treaties are authroized in the constitution, but most of our rights are secured in the amendments. Legally, the core constitution takes more votes to change than the bill of rights, and trumps it.

That means that if a foriegn country wishes to screw over our free speech rights, and the US government agrees with them - then the constitution becomes irrelavent.

From what I see that is outside the scope of the intended function of the law. A more contemporary example is child pornography. In Ashcroft v. Free Speech Coalition, pornography that is neither obscene under Miller or produced by exploitation of children under the Ferber test was declared constitutionally protected. The law in question said any material that "appears to be" or "conveys the impression" it involves a minor was illegal. It was struck down as overbroad.

The consitution says it is the supream law of the land. It also states that all laws and treaties shall be made in acordance with the constitution. This is the means that the courts are able to strike down laws and treaties that go against the constitution.Now, i'm not going to claim that courts are going to strictly enforce the constitution so you might be right to worry, it isn't set in stone. This is especialy troubling were the debate around federal and supream court apointies hang alot on and apointe's

Sounds like this law is somewhat like Wikipedia, just without the editors or limited content control. Any nation can add their own contributions to things that people should be punished for, and have it be law everywhere.

Can treaties be considered unconstitutional? It seems to me that the whole point of the constitution was to limit what laws could be made, with anything not permitted prohibited in the light of the inherent rights of mankind. This unlimited law-by-treaty seems rather destructive to the whole point of the constitution.

Treaties can be unconstitutional. The League of Nations [wikipedia.org], the precursor to the UN, was formed by the US, but Congress ruled that the US could not join it (some issue of constitutionality). Without the support of the US it didn't last long as I understand.

And the Wiki thing seems about right, except you can't remove contributed content without closing up the whole Wiki (just think how bad Wikipedia would look if you couldn't remove vandalized content).

Well, let me giev an example where the US Supreme Court may very well look at international law and social perspectives.

The Constution forbits "cruel and unusual punishment". But what is exactly "cruel and unusual"? When those words were framed, executing criminals for a wide variety of offences was viewed by many people - in many countries, too - as not being cruel nor unusual. But now, the US is one of the few (or the only?) western countries that has, and regularly uses, the death penalty. So what is

That's not a very good example, unless you can provide a convincing argument as to why the meaning of the Constitution, which is law only for those in the United States, ought to be goverened by those who are not subject to its jurisdiction. Simply put, we have elected officials to make those determinations, or if necessary, appoint judges to make those determinations. Why should those voices be set aside for the voices of those who are not bound to the Constitution, and totally unaccountable to those who

It wasn't Ars Technica that said it's the "World's Worst Internet Law" - that's the EFF. The only time Ars Technica uses that name is in quoting the EFF's opinion. If you RTFA, Ars Technica actually has a less worried view.

Perhaps they should make it an international Internet crime to post stories without checking even the most basic facts (ie, first two paragraphs of the document you link to).

Well, to be accurate, I didn't call it the world's worst Internet law in my EFF piece, either. The piece was titled "The World's Worst Internet Laws Sneaking Through the Senate", and was meant to convey the key problem with treaty: that this isn't just one bad bill, but a convention that would provide a route for importing many different problematic cybercrime statutes into U.S. (and exporting many of America's worst laws outward too: the Convention also requires all signatories to criminalize "commercial s

Aka - you don't stand a chance in HELL to police the internet. Anyone who think so ought to get their brain examined.

Data is like fluids, you can't filter everything - it's bound to get in everywhere at some time. And the number of data you'd have to filter is increasing with such a speed that there's no chance that ANY law system would be able to hire enough personnel or create software to control it all.

Want a real life example? Take spam - you can't control that either, and we have laws on it already almost EVERYWHERE - but does it work? Didn't work 10 years ago, not 5 years ago - doesn't work today, won't work in the future. Fluids will get in everywhere anywhere anytime.

Best way to filter is utilizing the individuals using the computers, mind filtering --> the no 1. filter in this world. The very same filter can also be used to FIND the content you really want rather than looking trough heaps of endless useless information (spam).

Even if they DID control the net (or the way we access the net) they would be unable to do so - because information always finds a way just like fluid, another net - wireless or by wire...doesn't matter. You can't stop the flow of information now, way too late! And thank goodness for that.

And what is the conclusion after that? BJust because you won't be able to catch each and every offender does not mean you should not try to catch as many as possible.

Of course not, but that really goes without saying.

The point is that they're trying to shoot with a shotgun into a crowd with millions of people, sure - the stray bullets will hit some, but this kind of random law-"hope we catch'em all"-giving won't hit the people they're after, it will most likely just make the masses feel worse, make it

Data is like fluids, you can't filter everything... Want a real life example? Take spam - you can't control that either,

They make liquid Spam now? No wonder it gets through the filters more easily. This could be useful, though. Whenever I try to make Spam Smoothies, I can't suck it through a straw and have to use a spoon.

A lot of people out there like to accuse the US of forcing other countries into enacting laws that are draconian, such as the DMCA and 90 year copyrights. However, the US is actually adopting these laws, such as the DMCA and the CTEA, as part of the WTO and WIPO treaties. It is actually many countries in Europe that these originate from.The WIPO and WTO actually call for laws much more strict than what the US has. Those "super DMCA" laws that other countries have are really just falling inline with what the

Yes, but other countries agreeing to adopt very bad ideas as law should not be justification for screwing our own citizens over in the same manner. Congress still has a LOT of explaining to do, so far as I'm concerned.

....is in decline. No this isn't some random rant. The sad fact is, multinational corporations really do wield influence that surpasses that of governments. This law is undoubtedly for their benefit, so that laws across the globe will have to defacto become harmonised to avoid all the legal toothaches this will cause.

Think about it. When companies the size of GE and Microsoft run into hassle with different laws in different jurisdictions, they just lobby for harmonisation. And that's what they've gotten. I expect to shortly have what rights I have on the internet reduced to the abysmal level of those living in the US and UK, and what the hell, Iran. All in aid of the children or rich yuppies or whatever. This is why you need proportional representation.

Government without the power to legislate and/or regulate the markets, cannot be used as a tool of special interests to legislate/regulate in their favor. This is one of the main principles behind libertarianism. If the government doesn't interfere in the marketplace, then it can't give anyone a government-granted advantage.

If a citizen in one of the other countries is accused by the U.S.A. of committing a crime which isn't illegal in their country the same rules apply.

Even worse, in the U.K. they could be extradited without the evidence even having to be disclosed to a judge or anyone else due to a treaty (supposedly to be only for terrorist cases but recently used on a fraud charge) with the U.S.A. which the U.K. has ratified but the U.S.A. has refused to. Now, that's scary!

Even worse, in the U.K. they could be extradited without the evidence even having to be disclosed to a judge or anyone else due to a treaty (supposedly to be only for terrorist cases but recently used on a fraud charge) with the U.S.A. which the U.K. has ratified but the U.S.A. has refused to. Now, that's scary!

Not for long, I think. In fact, the whole post-9/11 draconian government thing is rapidly dying in the UK, Tony Blair just doesn't realise it yet (or at least doesn't admit to realising it in public).

Yes, there was the recent case of three banking executives who were transferred to the US under dubious circumstances. However, that caused a huge political storm, because the "anti-terror" legislation was clearly being used for something that had nothing to do with safeguarding the land from terrorists. In this case, I suspect that either the US will ratify the treaty and agree the reverse as well very soon, or the UK government will be forced to pull out.

It's the same story elsewhere. Just this week, Walter Wolfgang, the long-standing Labour party member removed by heavies from last year's party conference for daring to heckle Jack Straw over the war on Iraq and then denied re-entry under anti-terror laws(!), was elected by the party membership to their national governing body. Not only does he get to speak at the next conference as a result, it seems he's guaranteed the chance to do so from the same platform as Blair et al.

ID cards and the National Identity Register... Ah, yes, New Labour's greatest threat. Except, of course, that even those people who would like to be involved with it as a lucrative business opportunity are openly questioning whether the government's scheme can even be implemented, never mind bring the claimed benefits. Both the significant opposition parties in England oppose the scheme. The Information Commissioner (our quasi-independent guardian of data protection and freedom of information issues) has issued some of his most damning comments ever on the subject, and ruled against the government several times on information disclosure issues. The timetables are obviously slipping badly, but no-one will admit how badly. The costs are huge, but no-one will disclose how huge. Sooner or later, the whole illusory stack of cards is going to collapse, and all Tony Blair's big "it's be a centrepiece in our next election manifesto" rhetoric is doing is digging his successor's grave early.

Likewise, a bill described as "Blair's (latest) enabling act" because of its attempt to reduce Parliament to pretty much a rubber stamp was quietly all but dropped a few weeks ago.

The government has been ruled against yet again in the past few days over the whole restraining order/detention without trial thing. This is one of those awkward issues: it's a good bet that a high proportion of the people subject to restraining orders really are nasty bits of work, but I think the principle of freedom from arbitrary detention transcends the importance of removing some liberties from a small number of individuals who may or may not pose some level of threat. It would be far better, if the government really has enough good intelligence to believe these people pose a current threat to our security, that the government should bring charges against them in a suitable court of law and make its case properly. In any case, one of the most senior judges in our land has now said outright that if the Home Secretary wants to impose this sort of thing, he's had ample time to consult Parliament since some of these suspects came to light, and therefore he can't just award himself new powers without scrutiny to do as he sees fit. (This on top of one of the most damning judgements in recent legal history from the High Court during the previous round of the case, which pulled few punches as far as telling the government it was way out of line.)

Personally, I increasingly think this is Gordon Brown setting Tony Blair up to take the fall for al

Sorry I don't understand how you came to your conclusion that gordon brown is setting up tony blair.I thought the commonly held belief is that tony blair intends to hand gordon brown a poisoned chalice.If only Mr blair would just go, hand over the leadership to his successor (probably gordon brown) and give him a chance to repair some of the damage caused by Mr Blair and his policies and impliment a few of his own.

maybe it is the fate of all politicians to initially do some positive things and progressively

Sorry I don't understand how you came to your conclusion that gordon brown is setting up tony blair.

I thought the commonly held belief is that tony blair intends to hand gordon brown a poisoned chalice.
If only Mr blair would just go, hand over the leadership to his successor (probably gordon brown) and give him a chance to repair some of the damage caused by Mr Blair and his policies and impliment a few of his own.

That's certainly a common belief in some quarters. However, I've noticed a distinct cha

We have that, it's called the Libertarian Party [lp.org]. If everyone who is disappointed with the Big Two would vote Libertarian, then change could actually happen. As long as you have people screaming "if you don't vote for B, you're essentially voting for A", this will never happen.

Find out who the major politiicans and business men are in those 40 countries and claim that they maybe infringing on your copyrights... and then get thier ISPs to track them. Use the information garnered to become fabulously wealthy and powerful.

No problem. Tony Blair admitted the other day that he gets one of his children to load his iPod for him. Would anyone like to take a guess about whether every single track was legitimately copied onto that machine?

The US Department of Justice has already announced that "essential interests" would allow the US to refuse any request that would violate the Constitution.

This is an hilarious PR statement, especially in light of the illegal behavior by our own citizens in currently in office. Given our recent track record, this is nothing more than some semantic sugar used to cover the foul taste of political corruption.

This issue hits home with me a great deal as I have been bagged, tagged, and am currently under investigation by the FBI for cybercrime. As such I've become all too familiar with the FBI's methods and cyber-crime infrastructure.Following 9/11 the US government, as we all know, molded the Patriotic Act and the Homeland Security Act to their needs. These later kick started the Critical Infrastructure Protection Board in to high gear. In 2003 the FBI formed Computer Intrusion Squads or Computer Hacking

Those countries that torture people, throws them in jail without as much as a charge, monitor their citizen, prosecute children...

Oh wait, since torture is illegal in the US, maybe those countries can be of use after all. Better not get our agents in legal trouble. What countries are those anyways? Are they US allies in the fight against terror and for a free and democratic world, like Saudi Arabia, Turkmenistan and Columbia or rather evil countries like Venezuela and France?

In the process of helping another country violate our laws, OUR law enforcement gets to violate our laws.

Obvious.

Don't know why they didn't think of this before - outside of the known use of the Echelon system by each country that is a part of it to allow other countries to spy on their citizens and share the info. The NSA doesn't spy on us (well, supposedly they didn't USED to!), they just let Britain do it and tell them about it.

There is already a deportation treaty between the UK and the US (well actually only the UK has ratified it so far and our moronic government did not put in a "only effective when both parties have ratified it" clause) with similar effects. Recently three UK bankers were deported to Texas for activities which took place entirely in the UK but which involved a US firm (Enron). Now as I understand it their actions (if true) were illegal under UK law but this was not important or at all relevant to the deportat

so defeat their efforts to track you posting anonymously from wireless access points using this mac address changer [securityfocus.com]. Remember kids, when privacy is outlawed, only outlaws will have complete privacy.

'The treaty requires that the U.S. government help enforce other countries' 'cybercrime' laws--even if the act being prosecuted is not illegal in the United States.

No shit, Sherlock! The treaty may be evil. It may suck ass. But that's what a treaty is. When two states sign a treaty they give up a bit of their sovereignty. Read up on what a treaty [wikipedia.org] is at Wikipedia. Or better yet read the US Constitution [wikipedia.org]. You'll be a leg up on the Bush administration who'd rather wipe their collective asses with it.

Now that "you have nothing to hide, so why do you care that Bush is tapping your phone" argument is looking pretty masochistic. Do you have nothing to hide from some some foreign government shipping your overseas relatives to concentration camps? Or just a foreign government whose leader's brother is searching for bank accounts to crack?Does anyone believe that your personal rights have any value to the US government when it invokes "essential interests" to protect some US jurisdiction from this treaty? Or

"Questions raised by Internet crime and international speech [...] already vex the developed world, and they're currently being handled without any comprehensive international framework in place to deal with them.The Convention at least gives us a place to start."

So we haven't even figured out basic answers to the first problems of international Internet "crimes" at the local level, so we're enforcing those broken laws in a global framework on billions of people. France and Germany are part of the EU, relat

Indeed. The Ars Technica article put "World's Worst Internet Law" in quotes for a reason. In fact, it flat out DISAGREES with EFF, even, and says that, "Given these safeguards, fears of political persecutions seem overblown," and that "the Convention provides enough safeguards to prevent the worst kinds of abuse, and additional protocols can always be negotiated if problems become insurmountable."